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Assisted Decision Making and Discharge from Wardship

The Assisted Decision Making (Capacity) Act 2015, as amended, commenced on the 26th April 2023. The Act provides for a new legal framework for supported decision making in Ireland, to deal with situations where a person may have difficulties with making certain types of decision.

Difficulties with decision making might arise, for example, as a result of an acquired brain injury, alzheimers, dementia, mental health difficulty or intellectual disability.  

The types of decisions that are covered by the Act include personal welfare decisions, healthcare decisions, accommodation issues and property and financial decisions.

The Act  provides for a presumption of capacity. Where there is a question in respect of a person’s capacity, the Act provides for a functional assessment of capacity which moves away from a medical test for assessing decision making capacity to a test which is issue and time specific. A person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time. The Act sets out a number of key principles to be followed to assess a person’s capacity.

The Act provides for a set of guiding principles which are a set of key principles which must be followed by people when interacting with a person who has or may have capacity challenges about a decision.

Three Tiers of Decision Support:

The new laws provide for three different tiers of supported decision making for adults who may have capacity issues in terms of making various types of decisions

  • (1) decision making assistance agreements;
  • (2) co-decision making agreements; and
  • (3) decision making representatives.

Forward Planning:

The Act also provides for mechanisms for forward planning for a time when a person might lose capacity to make decisions for themselves in relation to decisions on personal welfare, accommodation, property and finance matters and in relation to healthcare matters.

  • (4) Enduring Powers of Attorney; and
  • (5) Advance Healthcare Directives.

Each of the above decision support arrangements under the Act is considered further below and further information in relation to each of the decision support arrangements can also be obtained from www.decisionsupportservice.ie.

The 2015 Act changes the old laws in relation to wardship.

What was the law before 26th April 2023?

Under the old system, when it was determined that a person did not have capacity to make a decision, that person may have been made a ward of court, which was considered an “all or nothing” approach. This involved an application (a “petition”) to the High Court. When a person was made a ward of court, the Court took charge of all of the person’s personal affairs and their property or estate. A “Committee” (who in many cases was a family member) might have been appointed by the Court to take decisions for the person. In some cases the General Solicitor for Minors and Wards of Court, an official of the court, was appointed as Committee.

Discharge Process:

The 2015 Act provides for a system whereby all existing adult wards will be discharged from wardship. This will be done by the Court that took them into wardship, which in most cases will be the High Court. All adult wards must be discharged from wardship in the three year period beginning on the 26th April 2023 and ending on the 26th April 2026.

The application for discharge can be made by the ward themselves, or by their Committee, or by certain other persons, with the leave of the court. If no application is made for discharge by any of these parties, then the Court may review the ward’s case and make the discharge order on its own motion.

The ward’s capacity to make different types of decision will be assessed by the Court’s Medical Visitor in accordance with new requirements under the 2015 Act. The Court may decide that some wards can be discharged from wardship without requiring any support in decision making. Any ward assessed as requiring continued support in decision making will have new decision support arrangements put in place under one of the three tiers under the Act i.e. a decision making assistance agreement, a co-decision making agreement or a decision making representative or whether different supports are required in relation to different types of decisions.

There is detailed information along with flowcharts and explainer videos available on the discharge from wardship process on https://www.courts.ie/assisted-decision-making-capacity-act

There are three tiers of supported decision making:

  1. A decision making assistance agreement:

 This is the lowest tier of support and is an agreement which allows you to appoint someone you know and trust as a decision making assistant to assist you with making decisions, for example, by providing and explaining information to you in a way that you are more easily able to understand. The decision making assistant also helps you to let other people know what your decision is.

  1. A co-decision making agreement:

This agreement allows you to appoint a person or persons you know and trust as a co-decision maker to make certain decisions jointly with you.

  1. A Decision Making Representation Order:

 This is the highest or most formal tier of decision support. It is an order which is made by the Circuit Court appointing a person known as a “decision making representative” to make particular decisions on behalf of a person who the Court has determined does not have capacity to make those particular decisions themselves alone or with the assistance of a co-decision maker.

This type of application might arise where it is not possible for a person to enter into one of the first two agreements outlined. The person may lack the capacity to enter a lower tier agreement or they may not be willing to do so. Where decision support is considered necessary, an application can be made to the Circuit Court. The Court will make a declaration in relation to the capacity of the person. The Court may decide that:

a) the person does notlack capacity in relation to the particular matters and therefore does not require formal decision support in relation to those matters;

b) the person lacks capacity in relation to certain matters and is not able to make decisions on those matters without the assistance of a co-decision maker.

In this instance the court proceedings will be adjourned to give time to the person to enter into a co-decision making agreement. If the person does not enter into a co-decision making agreement, the court can proceed to appoint a decision making representative who will make certain decisions set out in the court order on behalf of the person.

c) the person lacks capacity to make decisions on certain matters even if they did enter into a co-decision making agreement.

The Court may either, step in and make particular decisions on behalf of the person itself, or it can appoint a person known as a decision making representative to make particular decisions on behalf of the person. The decision making representative may be someone who is known to the person or, in certain circumstances, where there is nobody willing or able to act or where certain expertise is required, a professional decision making representative may be appointed from a panel of such representatives maintained by the Decision Support Service. It is important to note that the decision making representative can only make the types of decisions that are set out in the court order.

Planning Ahead:

There are two other types of support arrangement that can be made to plan ahead for a time when they might be needed in the future, when a person might have issues with their decision making capacity. You do not need to have any current difficulty or need for support in taking decisions to make either of these arrangements.

  1. Enduring Power of Attorney:

You can appoint someone you know and trust as an “attorney” to make certain decisions on your behalf in the event that you are unable to do so at some point in the future. The decisions can be about your personal welfare and property and financial matters. You can give your attorney general authority to make decisions or authority to do specific things on your behalf.  (The term “attorney” is in this context does not need to be a lawyer usually they will be a family member but what is most important is that they are someone you know and trust).

This type of arrangement could be made before the new law commenced but changes have been made to how Enduring Powers of Attorney are made, registered and brought into operation, when they are needed and how they are supervised.

  1. Advance Healthcare Directive:

You can write down your wishes about healthcare and medical treatment decisions in case you are not able to make those decisions yourself at some time in the future. This includes treatment that you do not want.

You can also appoint someone you know and trust to ensure that your decisions and wishes in this document are followed in so far as they can be. In other countries similar documents are sometimes called “living wills” or “advance decisions to refuse treatment” and you may have heard these other terms used before.

How I do I draw up a support arrangement?

Details of how to make a decision making assistance agreement, a co-decision making arrangement, an enduring power of attorney or advance healthcare directive are available on www.decisionsupportservice.ie . These can all be done by using the My DSS online system.

You do not need to have a lawyer draw up an agreement if you do not want to but where you do want legal advice and assistance, you can apply for legal services to the Legal Aid Board. Please see more below on applying for legal services.

Particularly, where you are making an enduring power of attorney you will need to get a “legal practitioner statement” from a lawyer. The lawyer will interview you about your understanding about what the effect of the enduring power of attorney coming into force will be.

If you want to make a co-decision making agreement or an Enduring Power of Attorney, you will also need a form signed by your doctor or another healthcare professional called a “statement of capacity form”.

Full details of what is required for each type of agreement can be found on the Decision Support Service website.

Legal advice to draft a decision support arrangement:

State-funded legal advice is available in relation to putting in place of any of the following decision support arrangements:

  1. Decision Making Assistance Agreement
  2. Co-Decision Making Agreement
  3. Enduring Power of Attorney
  4. Advance Healthcare Directive

Financial Eligibility and Contributions:

  • Legal advice is available to the person putting in place the arrangement and any person who is being appointed under the arrangement.
  • All applicants for legal services seeking legal advice and assistance with putting in place any of the above arrangements or applicants seeking legal advice in relation to their role and obligations as the person appointed under the agreement must satisfy a means test.
  • Your disposable income (after we deduct certain allowances) must be less than or equal to €18,000 per annum and your capital assets (items like your car, money in the bank, or real property, but not the house in which you live) must have a total value of less than €100,000 (after we deduct certain allowances) .
  • You will have to pay a contribution ranging from €30 to €150 for legal advice or assistance to put in place one of the above arrangements. Most people will only have to pay the €30, but this will depend on your disposable income. If your only source of income is social welfare and your disposable capital is less than €4,000 then you will only have to pay the €30.
  • Where it is only legal advice that is required, and the matter does not require a court application, there will be no further costs above the contribution outlined of €30 to €150.
  1. Legal Aid and Advice in Capacity Applications (Part 5)

If you want to issue a Capacity Application seeking a declaration of capacity in respect of yourself or another person or if you are served with a Capacity Application or want to appear in the proceedings, you can apply for legal advice and legal aid for representation from the Legal Aid Board.

Financial Eligibility:

Different criteria on eligibility apply depending on whether you are the person the subject of the application seeking a declaration of capacity, known in legal terms as the “relevant person”, or whether you are another party. The different requirements are set out here under A. for the relevant person and B. for other parties.

  1. The relevant person:

If you are the person whose capacity is in question and an application is being made to the Court for a declaration in respect of your capacity

  • you are entitled to legal advice and legal aid under the 2015 Act for this application irrespective of the value of your income or assets
  • you do not need to satisfy the means test to be eligible for legal aid.
  • No financial contribution is payable by the person who is the subject of the capacity application.

Financial assessment and recovery of costs from a relevant person:

  • Although a relevant person is entitled to legal representation irrespective of their means, we still need to obtain financial information from you and we are still required to assess your means. This is because the 2015 Act provides for a potential clawback of costs from relevant persons whose disposable income or assets are above the normal financial thresholds which apply to legal aid. As a result, this financial information is to establish whether you may be required to repay some of the costs of the legal representation at the end of the case if you do not satisfy the means test.
  • If you are the relevant person in the proceedings (the person whose capacity is being considered by the Court) and your annual disposable income is €18,000 or less and your disposable assets are valued at €100,000 or less, you will never be asked to pay back any of the costs of legal representation.
  • If your annual disposable income (after we deduct certain allowances) is in excess of €18,000 or your capital assets (excluding the house you live in) exceed €100,000, then you may be subject to a clawback of the costs of the Legal Aid Board in acting for you in the Capacity Application.
  • The costs potentially payable by you are based on the rates that are paid to private practitioners in providing legal services on behalf of the Legal Aid Board in a Part 5 Capacity Application.
  • The costs of the solicitor and, if applicable, barrister  are capped at the amount that would be paid to a private practitioner dealing with the case. Depending on whether the capacity application is uncontested or contested, these fees range from €2,200 to €3,300 plus VAT plus any additional costs such as the costs of any reports required.
  1. Any other person:

Anyone else applying for legal advice or legal aid for representation in instituting or appearing in a Capacity Application (any person other than the person whose capacity is in question, e.g. a spouse, child or other relative of the person whose capacity is in question):

  • must satisfy the means test for legal services. If you do not satisfy the means test the Legal Aid Board can not provide advice to you or represent you in the proceedings.
  • Your annual disposable income must be €18,000 or less and your capital assets must not exceed €100,000 (excluding the house you live in).
  • A contribution will be payable by persons in this category towards legal aid. This can range from €130.00 up to €5,000. The amount of your contribution will depend on your annual disposable income and the value of your capital assets, (excluding the house you live in).
  • You will never have to pay any additional costs of representing you in the proceedings other than the contribution that is assessed as payable by you.
  1. Legal Aid and Advice in Discharge from Wardship Applications (Part 6):

  2. Ward of Court
  • All wards of court are entitled to legal advice and legal aid for representation in the discharge from wardship proceedings, irrespective of the value of their income or assets including funds held in court. Representation can be either to institute the discharge proceedings yourself or to be represented at the discharge proceedings where the proceedings are issued by another party.
  • Committee: Where the ward of court is not in a position to make the application for legal services themselves, the Committee of the ward may apply for legal services for the ward, in the name of the ward. The application for legal services will be based on the ward’s details and financial information. We do not require the financial information of the Committee in this instance. The Committee can assist the solicitor assigned to the case in obtaining the information required to make the discharge application on behalf of the ward. If a conflict arises, the Committee will be advised to seek legal advice and representation separate to the ward.
  • The ward does not have to satisfy the financial eligibility requirements to be eligible for legal aid and the ward does not have to pay a contribution towards legal aid.
  • If you are a ward or a relative of the ward and the ward’s Committee is the General Solicitor, you may wish to speak to their office before making an application for legal aid.

Financial assessment and recovery of costs from the ward of court:

Although a ward of court is entitled to legal representation irrespective of their means, the Legal Aid Board is still required to obtain financial information about the ward’s income and assets and we are still required to carry out a financial assessment on the ward’s annual disposable income and disposable capital.

  • This is because the 2015 Act provides for a potential clawback of costs from a ward whose disposable income or assets are above the normal financial thresholds which apply to legal aid. As a result, this financial information is to establish whether the Ward may be required to repay some of the costs of the legal representation at the end of the case if the Ward does not satisfy the means test.

Any ward whose annual disposable income is €18,000 or less and whose disposable capital is €100,000 or less will never be asked to pay any costs of the legal representation.

  • Any ward whose annual disposable income (after we deduct certain allowances) is in excess of €18,000 or whose disposable capital is in excess of €100,000 (after we deduct certain allowances) may be subject to a clawback of the costs of the Legal Aid Board in acting for you in the Discharge Application.
  • The Committee will never be asked to pay these costs personally and they will be payable from the ward’s funds where recovery is sought. The Committee may be asked to assist the Board in obtaining information in relation to the ward’s means and capital.
  • The costs potentially payable by the Ward are based on the rates that are paid to private practitioners in providing legal services on behalf of the Legal Aid Board for a Part 6 Discharge Application.
  • The costs of the solicitor and, if applicable, barrister are capped at the amount that would be paid to a private practitioner dealing with the case. Depending on whether the discharge application is uncontested or contested, these fees range from €3,950 to €5,835 plus VAT plus any additional costs such as the costs of any reports required.
  1. Any other party:
  • Any other person applying for legal advice or legal aid for representation in the discharge proceedings must satisfy the financial eligibility test for legal services. Such persons might include the Committee, the parents of the Ward, a sibling of the Ward or children of the Ward.
  • You may be applying for legal advice only in relation to the proceedings and the potential outcomes or in relation to your position going forward and your obligations if you are to be appointed as a decision supporter for the ward who is being discharged.
  • Legal aid may be granted where representation is required in the proceedings.Your annual disposable income must be €18,000 or less and your capital assets must not exceed €100,000 (excluding the house you live in).
  • A contribution will be payable by you towards legal advice on the proceedings ranging from €30.00 to €150.00 and this will depend on the amount of your annual disposable income.
  • A contribution will be payable by you where you require legal aid for representation in the proceedings. This can range from €130.00 up to €5,000. The amount of your contribution will depend on your annual disposable income and the value of your capital assets, (excluding the house you live in).
  • You will never have to pay any additional costs of representing you in the proceedings other than the contribution that is assessed as payable by you.

Costs:

In all cases, where there is a potential liability to costs:

  • Your solicitor will discuss costs with you at the outset of the case and will advise you in writing about same.
  • You will always be provided with an outline of the costs that are likely to be involved and the basis upon which such costs are calculated. This is mainly on the basis of the number of solicitor hours spent on the case, barrister fees, reports that might be necessary in your case and any other outlay or expenses.
  • If additional costs arise as the case progresses, you will be advised of same by your solicitor and you will receive a written notification of same.
  • At the end of the case, your solicitor will submit an outline of the costs to the Head Office of the Legal Aid Board and advise whether the matter was contested or uncontested.
  • A bill of costs will be drawn up which will include items such as the solicitor hours on the file and any other costs such as a barrister’s brief fee or other barrister fees, the costs of any reports required, any stamp duty or outlay.
  • Where the solicitor hours and barrister brief fee amount to a figure higher than the costs outlined above for each type of case, they will be capped as outlined.
  • The bill of costs will be provided to you and/or the decision supporter or supporters who have been put in place.
  • If a bill of costs is submitted to you for payment then it will be possible for you to apply for a waiver of those costs and the Board will consider whether it is appropriate to waive all or part of the costs and outlay being sought.

Other Criteria for Legal Aid:

Merits criteria – In all cases, merits criteria under the Civil Legal Aid Act, 1995 will need to be satisfied. The merits criteria basically look at whether you have grounds to institute, defend or be a party to the proceedings. It also considers if you would take the case if you were spending your own money on it and if a lawyer would advise you to take the case if you were paying them out of your own money.

The Board will not consider the prospects of success of the case nor will it examine the cost of the proceedings v the benefit to you of taking them in deciding whether to grant legal aid to you.

You can apply on our application form for legal services which is available to download here or which is available from any of our law centres. A full list of all law centres is available here and you can drop into the law centre or contact them by telephone or email to request a copy of the application form. You can also apply online on www.legalaidboard.ie. The Legal Aid Board has designated nine law centres to provide legal services under the Act which are as follows:

Law Centre                                      Counties covered

Ballymun                                          Dublin                                                           

Cork South                                      Cork

Dundalk                                            Meath / Louth

Wicklow                                            Kildare / Wicklow

Letterkenny                                     Donegal/Cavan/Leitrim/Monaghan

Waterford                                         Waterford/Tipperary/Kilkenny/Wexford/Carlow

Limerick                                            Limerick/Kerry

Ennis                                                 Clare

Castlebar                                          Mayo/Galway

Portlaoise*                                     Sligo/Longford/Roscommon/Offaly/Laois/Westmeath

*Portlaoise LC is not yet taking applications under the 2015 Act so in the meantime you can apply to any other law centre.

Who can assist me if I need additional support in making an application for legal services?

Staff in the law centres can assist you with filling in the application form for legal services and this assistance can be provided in person when you attend at the law centre or over the telephone.

If further assistance is required, please contact the Access Officer whose details are here and arrangements will be made as required to support you in the application process.

What supporting documentation is needed with my application?

We request the following supporting documentation with applications for legal services:

  • (1) proof of income;
  • (2) proof of address; and
  • (3) proof of identification.
  • (4) In discharge from wardship cases, we will also seek a copy of the Declaration Order made when the ward was taken in wardship.

We appreciate that the above documents may not be readily available or available at all in some cases. In such circumstances, we will consider each individual case and advise you of what is required when you make your application or what steps can be taken to meet the requirements. The lack of availability of the supporting documentation is not a bar to progressing the application.

Who will provide my legal advice or legal aid? Do I need to have my own solicitor?

First of all, your case will be processed by a clerical officer or law clerk in the law centre. Once your application is processed, it will be placed on the law centre waiting list.

In some cases a solicitor in the law centre will be assigned to your case to provide your legal advice or legal aid. You will not be able to choose your solicitor.

In other cases you will be referred to a panel of solicitors who work in private practice but who have agreed to take on legal aid cases. In this case you can choose your own solicitor from a list of solicitors who are on the panel for this area of work. The solicitor must be a member of the panel and the solicitor must agree to take your case. You cannot choose a solicitor who is not on the panel. The Legal Aid Board will pay the fees of the private solicitor who is on the panel in accordance with the terms and conditions that the private solicitor has signed up to.

Will my case be given priority?

All applications received in law centres are assessed by the managing solicitor of the law centre for priority.

  • In cases where legal advice services are sought in order to put in place an enduring power of attorney or advance healthcare directive, priority will always be given if there is any indication on the application form that there are health or capacity issues which might affect the applicant’s ability to put such an arrangement in place if it is not dealt with as a priority. Similarly so, in relation to decision making assistance agreements and co-decision making agreements.
  • If the matter involves a capacity application or discharge from wardship application and there are court dates pending, the law centre will seek to give the matter priority taking into account also other matter such as court commitments and the other applications on the waiting list awaiting priority services.
  • If there is a statutory deadline or other issue evident in the application form which makes it clear that a priority service might be necessary, this will be considered by the law centre.
  • If the law centre cannot offer a priority appointment or service where it is required, the applicant will be granted an authority for advice from a private practitioner or will be granted a legal aid certificate for representation in court from a private practitioner.

What is the Decision Support Service?

The Decision Support Service is part of the Mental Health Commission. It is responsible for registering, supervising and regulating the various decision support arrangements. If you have a complaint about a decision supporter, you can make it to the DSS. Information about the DSS is available on their website at www.decisionsupportservice.ie

General Information on the Assisted Decision Making (Capacity) Act 2015 is available on the following pages:

www.decisionsupportservice.ie

www.sageadvocacy.ie

www.safeguardingireland.org

https://www.citizensinformation.ie/en/health/legal-matters-and-health/assisted-decision-making-act/

https://www.hse.ie/eng/about/who/national-office-human-rights-equality-policy/assisted-decision-making-capacity-act/

A full copy of the Assisted Decision Making (Capacity) Act 2015, as amended by the Assisted Decision Making (Capacity) (Amendment) Act 2022 is available on the following link:

https://revisedacts.lawreform.ie/eli/2015/act/64/revised/en/html

Information from the Courts Service in relation to Capacity Applications and Discharge from Wardship applications is available on the following links:

Circuit Court:

https://www.courts.ie/assisted-decision-making-circuit-court

Discharge from Wardship:

https://www.courts.ie/assisted-decision-making-capacity-act

A Guide for family carers on the Assisted Decision Making (Capacity) Act 2015, as amended is available at:

 https://familycarers.ie/media/3012/a-practical-guide-for-family-carers-on-the-assisted-decision-making-capacity-act-2015.pdf